clr/1981/1981_2_9.pdf

(1)of the Criminal Code—Meaning—Such cases " to be approached by reference to Cyprus Criminal Code and not to the Common Law—Proof of ownership of the money and absence of consent of owners—Whether absence of consent of all persons who entrusted money has to be proved—Time of 9 Azinas nad Another v. Police

(1981)"taking" of money by appellants was the time of using it for purposes other than those specified—Whether identification of the money stolen needed—Platritis v. Police

(1967)2 C.L.R. followed—R. v.Feely [1973] 1 All E.R. 343, adoptedinZissimides v. Republic

(1978)2 C.L.R. 382, not applicable. 5 Stealing—Stealing by agent—Sections 255, 210(

1. b)and 257 of the Criminal Code, Cap. 154—Drafting of charges—Statement of offence—Non-inclusion of section 257 therein—Conviction not a nullity. Criminal Procedure—Charges—Drafting—Statement of offence— Stealing by agent—Sections 255, 210(
2. b)and 257 of the Criminal Code, Cap. 154—Non-inclusion of section 257 in statement of offence—Conviction not a nullity. 10 Evidence—Admissibility—Charge of stealing by agent—Certified copies of lists in possession of Co-Operative Institution—Rightly 15 admitted in evidence undersection 31 of the Co-Operative Societies Law, Cap. 114. Co-operative Societies Law, Cap. 114—Section 31 of the Law—Identical withprovisions of theBankers Rooks Evidence Act, 1879— Constitutes an exception to the hearsay evidence rule and is not 20 contrary to the provisions of the Evidence Law, Cap. 9. Breach of trust affecting the public—Section 133 of the Criminal Code, Cap. 154—-Ingredients of the offence—"Trust" meaning— "Public" meaning—Whether ordinary negligence enough to prove the offence and whether wilful negligence required. 25 Words and phrases—"Trust"—"Public"—"Fraudulently"—Meaning. Criminal Procedure—Charge—Particulars—Asked for and given during the trial—Whether absence of particulars can be raised on appeal. Criminal Procedure—Trial of criminal cases—Evidence—Within province of trial Judge to believe or disbelieve evidence given by the parties. Criminal Law—Offences—Same set of facts can make more than one offence—What matters is whether ingredients of the offence have been proved. Common Law—Principles of—Applicability in Cyprus. 10 30 35 2 C.L.R. Azinas and Another v. Police Criminal Law--Parties to offences—Aiders and abettors—Section 20 of the Criminal Code, Cap. 154—Law applicable. 5 10 Stealing—Stealing by agent—Aiding and abetting—Section 20 and sections 255, 210(b)and 251 of the Criminal Code, Cap. 154— Stealing money entrusted for a specified purpose by paying it for another purpose—Aider and abettor truly believing or taking *'f°f granted thatpayments were within the specified purpose— Should have been given the benefit of doubt. Criminal law—Sentence—Appeal against sentence—Approach of Court of Appeal—Stealing by agent, breach of trust affecting thepublic andabuseof office—Sentences of six months to eighteen mo/ιί/υ' imprisonment—Not manifestly excessive in the circum­ stances of this case. ' Criminallaw—Sentence—Disparity of sentenceas aground of appeal— Principles applicable—Imposition of punishment should be propo­ rtionate to participation in the crime—Eighteen months' imprison­ ment onprincipal offender andtwelve months' onaiderandabettor •—Differentiation made by trial Judge inadequate to recognise the difference between their cases—Sentence passed on aider 20 andabettor wrong inprinciple andmanifestly excessive—Reduced. 15 25 30 35 The appellants wereconvicted by theDistrict Court of Nicosia on six counls of the offence of stealing by an agent, contrary to sections 255, 270(
3. b)and 20 of the Criminal Code,Cap. 154; on six counts of the offenceof abuse of office by a public seivant, contrary to sections 105 and 20 of the Criminal Code; andon six counts of the offence of breach of trust affecting the public, contrary to sections 133and20of theCriminal Code; and appel­ lant 1 was sentenced to concurrent sentences rangingfrom six to eighteen months' imprisonment and appellant 2 to concurrent sentences of six to twelve months* imprisonment. Appellant 2 was convicted as aiding and abetting appellant 1 contrary to section 20 of the Criminal Code. Moreover appellant 1 was convicted on three more counts which related to each of the above offences. Appellant 1was at all material times a publicservant holding the post of Commissioner of Co-operative Development; and appellant 2 was holding thepost of Director of the Co-operative College, but he was not a public servant. Following the Turkish invasion of Cyprus many employees 11 Aztoai andAnother r. Police

(1981)of the Co-operative movement had to leave their homes and became, thus, displaced and unemployed. On December 22, 1974, appellant 1 convened a meeting with a view tofinding ways and means to improve the position of these employees. At this meetingitwasdecided tosetupa fund called the"Self- 5 Assistance Fund*' for the purpose of rehabilitation of the displaced co-operative employees by granting to them financial aid. There followed circulars signed by appellant 1, in his capacity as Commissioner of Co-operative Development, which were addressed to Co-operative Institutions and Co-operative 10 employees, inviting them to contribute to the above Fund and that their contributions would be utilized for the displaced Co-operative employees who lost their jobs. As a result of the above circulars Co-operative Institutions and other persons made contributions to the "Self-Assistance Fund" which was 15 under the administration of appellant

1. Appellant 1 aided byappellant2madepaymentsoutoftheaboveFund, amounting to £105,894.009 mils to third persons and for purposes other than those of the "Self-Assistance Fund". These payments formed the subject matter of the above'counls and according 20 to the particulars of thefirstsix counts (stealing by agent) the appellants fraudulently converted, on various dates the said total sum of £105,894.009 mils, which was entrusted to the first appellant by Co-operative Societies and other persons whilst he was the Commissioner of Co-operative Development 25 in order topaythesaid sumto displaced andunemployed Cooperative employees and appellant 1aided by appellant 2 paid the said sums to third persons for purposes other than those of the "Self—Assistance Fund". Theparticulars of thecharge relatingtotheaboveoffencesofabuseofofficebyapublicservant 30 and breach of trust referred to thepayment of theabove sums to the same persons and generally to thefacts constituting the offence of stealing by agent. Appellant 2 wasinvolved in the administration of the "SelfAssistance Fund" andheknewverywellthepurposes forwhich 35 ithadbeencreated. Paymentsfrom thefund weremadethrough cheques prepared in his office, he was making announcements inviting the persons entitled to payments from the Fund togo and collect their chequesfrom hisoffice andwasaware ofeverything that was done by appellant
2. The name of the "Self- 40 Assistance Fund" was changed in September,
3. 12 2 CX.R. Azinas and Another v. Police In the course of investigating the above offences the police took a statement from appellant 1on the 1st May, 1980 and before cautioninghimtheinvestigating officer madethe following statement: 5 10 15 "I inform you that I am carrying out investigations with regard to offences, which in accordance with the material I have in my hands, you have committed in your capacity as Commissioner of Co-operative Development and Registrar of Co-operative Societies". Appellant 1 was then questioned and his statement was in the form of questions and answers. The trial Judge in ruling that the statement in question was admissible held that once the material which the police had in their hands at the time did not justify the bringing of charges against appellant 1the statement was admissible because rule II of the Judges' Rules was applicable. Upon appeal against conviction and sentence Counsel lor the appellants contended: 20 25 30 35

(1)That the conviction of appellant 1 was the result of a substantialmiscarriage ofjustice inasmuch as indeciding thesubmission ofcounsel for theappellant that theprosecution did not prove a primafacie caseagainst theappellant, the trial Judge, by its ruling of the 24th January, 1981, decided certain matters affecting the guilt or innocence of the appellant finally and before having heard the evidence of the appellant and his witnesses contrary to the accepted principle of law that thefinalpronouncement of the guilt or innocence of an accused person should be pronounced only after hearing the whole of the case including the appellant's version.

(2)That the trial Judge erroneously accepted and received in evidence the statement made by appellant 1 to the police on the 1st May, 1980,which statement materially affected the final verdict. The objection to its admissibility being that it was rule III of the Judges Rules which was applicable and no rule II; and that since rule III wasapplicableonlyinexceptional casesquestions relating to the offence should have been put to theappellant and this after cautioninghim in the terms prescribed 13 Azinas and Another v. Police

(1981)by paragraph (b) of rule III; and not in the terms of rule II as was done in this case.

(3)That appellant 1 wasprejudiced becauseof thecontemporaneous sittings of the Commission of Enquiry, set up by the Council of Ministers to enquire into, interalia, the conduct of officers of the Co-operative Movement and the press publications of such sittings which were most of the time misleading, with the sittings of the Court in the present criminal case, adversely affected the fair trial of the appellant to such an extent as to render his conviction and sentence unconstitutional and illegal.

(4)That the framing of the charges with schedules attached to thecharge-sheet givingdetailsof thevarious payments was faulty because it introduced more than one offence contrary to the basic procedural rule against duplicity.

(5)That the trial Court erroneously found appellant 1 guilty of the offences of stealing by agent* under sections 255 and 270(b)** of theCriminalCodeCap.155,inasmuch as section270(b)creates theoffence of fraudulent conversion and not the offence of stealing by an agent; and the non-inclusion in the relevant counts of section 257** * Section 255

(1)reads as follows: " 1 . A person steals who,without theconsent of theowner fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent, at the time of such taking permanently to deprive the owner thereof. Provided that a person may be guilty of stealing any such thing notwithstanding that he has lawful possession thereof if, being a bailee or part owner thereof he fraudulently converts the same to his own use or the use of any person other than the owner". ** Section 270(l)(

1. b)reads as follows: "If the thing stolen is any of the following, that is to say: (
2. b)the property which has been entrusted to the offender cither alone or jointly with any other person for him to retain in safe custody or to apply, pay or deliver for any prupose or to any person the same or any part thereof or any proceeds thereof". **+ Section 257 provides as follows: "257. When a person receives, either alone or jointly with another person, any money or valuable security or a power of attorney for the sale, mortgage, pledge, or other disposition of any property, whether capable of being stolen or not, with a direction in either case that such money or any part thereof, or any other money received in exchange for it, or any part thereof, or the proceeds or any part of the proceeds of such security, or of such mortgage, pledge,or other disposition, shall beapplied toany purpose orpaid toanypersonspecified inthe direction, such money and proceeds are deemed to be the property of the person for whom the money, security, or power of attorney was received until the direction has been complied with". 14 2 C.L.R. Azinas and Another v. Police of the Code makes the conviction of the appellant on these counts a nullity.

(6)That the trial Court erroneously convicted the first appellant of the offences of stealing by agent once the following necessary ingredients of the offence under sections 255 and 270(

1. b)of the Criminal Code had not been proved by the prosecution: (
2. a)that appellant acted "fraudulently"; (
3. b)that there was no averment and no proof of the ownership of the money, subjectmatter of the relevant counts, in the charge-sheets; (
4. c)that there was no proof of the absence of the consent of the owners for the actions of the appellant; (
5. d)that the prosecution failed to call all owners of the money, subject-matter of the said counts, to give evidence; (
6. e)that the absence of proof that at the time the money was being entrusled to appellant there was no intention on his part to deprive the owners of the money of the Fund or their property; and (
7. f)that there was no evidence of any taking by the appellant of the money in the sense of section 255 of the Criminal Code since the said money was being lawfully paid into the Fund by the various doners of the Fund. 5 10 15 20

(7)That the offences of stealingbyagent have not been proved because there has not been an identification of the money. 25 This contention was based on tht fact that money belonging to the "Self-Assistance Fund" was amalgamated with the money belonging to another Fund namely the Fund of Ethnarch Makarios III.

(8)That the trial Judge erroneously accepted as evidence the lists and other connected documentary evidence in respect of the donors to the Fund, relying on section 31* of the Co-Operative Societies Law, Cap. 114, because section 31 was not applicable and could not override the provisions of the Evidence Law, Cap. 9. 30 35

(9)That the trial Judge erroneously found appellant 1 guilty * Section 31 is quoted at pp. 95-96 post. 15 Azinas and Another v. Police

(1981)ofthe offences of breachoftrust contrary to section133* of the Criminal Code, Cap 154

(10)That the particulars of the offences in the charge-sheet were not complete.

(11)That the verdict of the trial Judge concerning appellant 5 1 on all counts is contrary to the weight of evidence and is not supported thereby, the trial Judge having wrongly accepted the evidence of the prosecution and rejected that of the defence.

(12)That appellant 1 could not befound guilty oftheoffences 10 of abuse of office and breach of trust because he was found guilty of the offence of stealing bv agent.

(13)That the trial Judge wrongly found that appellant 2 was aiding and abetting appellant 1 on various counts, by virtue of the provisions of section 20of theCriminal 15 Code, because there was no evidence establishing any conduct on his part that would render him guilty.

(14)That the trial Judge wrongly found that appellant 2 knew the purposes of the "Self-Assistance Fund".

(15)That the sentence passed on appellant I was manifestly cxccs*u\e 20

(16)That the sentence imposed on appellant 2was manifestly excessive and wrong in principle because it contravened the principle of disparity of sentence. Held,(i) that the mere fact that the trial Judge decided in 25 his ruling, which he gave on the submission of the defence that therewasnocasetoanswer,the relevant elementsofthe offences which the appellants were facing does not mean that the Judge decided their guilt before hearing them, that, on the contiary, it has helped the defence by poinding out inhisruling what the 30 legal aspect of the case was, that the trial Judge never dealt with the evidence adduced, and indeed, he never decided the Section 133 provides as follows ' 133 Any person employed in the public service who in the discharge of the duties of his office, commits any fraud or breach of trust affecting the public, whether such fraud or breach of trust would have been criminal or not if committed against a private person, is guilty of a misdemeanour" 16 2 C.L.R. Azinas and Another r. Police guilt of the appellants as the defence had argued; that the trial Judge followed the proper approach as laid in the relevant case-law; accordingly contention (I) must fail (see Practice Note issued in 1962 by the Divisional Court of the Queen's Bench Division of the High Court of Justice in England; WisemanandAnother v. Borneman andOthers [1969] 3 All E.R. 275 at p. 277; Rex v. KaraMehmed,16 C.L.R. 46 and R. v.Galbraith[1981] 2 All E.R. 1061). 10 15 20 25 30 35 40

(2)That the basic criterion which istaken into consideration bya trialJudgefor admitting or not thestatement of anaccused person, is whether it was given voluntarily; that compliance, however, with the Judges' Rules would help considerably a Court to decide as to whether the statement taken was given voluntarily or not; that the question whether a person has been duly cautioned before making a statement is a circumstance to betaken intoaccount bytheJudgeinexercising his discretion whether to exclude the statement, but the absence of a caution does not as a matter of law make the statement inadmissible; that the Judges' Rules are applicable in Cyprus in exactly the same way as they are applicable in England and therefore they do not have the foice of law, but are rules of practice for the guidance of the police officers and not foi the circumscription of the Judicial power (see section 8 of the Criminal Procedure Law, Cap.155); that the phraseology used by the police in this casedoesnotform partofthecautionasitisstated intheJudges' Rules, rule II, but it is an introduction to tho subject only, andtherefore,thereisnoparticularphraseologywhichisbinding; that,furthermore, the phraseology used by the police does not mean that the investigating officer had informed the accused that hehad inhishandsevidencewhichjustified criminalproceedings; that, therefore, the trial Judge rightly accepted the statement of appellant 1; accordingly contention

(2)must fail.

(3)That appellant I was not prejudiced because of the contemporaneous sittings of the Commission of Enquiry because in Cyprus there is no jury system; that this case has been tried by an experienced Judge who has been sitting on the bench listening to thearguments of all counsel for alongtimeandwith his training he was in a position to discard extraneous matters and publications, and not to allow himself to be influenced by anything outside his Couit, as he himself clearly stated in 17 Azinas and Another •. Police

(1981)his ruling on this point; accordingly contention

(3)must also fail.

(4)That though the course of attaching schedules to the charge-sheet isundesirable and thisCourt hascertain misgivings with regard to the framing of thecharges,finally,in view, parti- 5 cularly, of the proviso to section 39 of the Criminal Procedure Law, Cap. 155 to the effect that no error in stating the offence or the particulars required to be stated in the charge shall be regarded at any stage of the case as non-compliance with the provisions of this law unless in the opinion of the Court, the 10 accused was in fact misled by such trror, it would suppoit the ruling of thetrial Court that thechargeswerenot bad for duplicity; accordingly contention

(4)should fail.

(5)That independently of the name one gives to the offence itisclearthat theJudgefound thefirstappellant guiltyofstealing 15 asitislaid down insections255and270(

1. b)oftheCriminalCode; that what really matters is whether the relevant ingredients of theoffence canbeprovedinthepresentcase;that,of course,ifthat offence happens to be named fraudulent conversion in England it does not mean that it must be named also here fraudulent 20 conversion, in view of the fact, that in the margin of section 270 it is described as stealing by an agent; that the mere fact that section 257 was not used does not mean that there is no offence because the offence exists by combining the proviso to section 255 with that.of section 270(b); that,therefore,the non- 25 inclusion of section 257 in the relevant counts does not make the conviction of appellant 1 a nullity; accordingly contention 5 must fail (Platritisv. Police distinguished; see, also, section 39(
2. c)and proviso to section 39 of the Criminal Procedure Law, Cap. 155). 30

(6)(

1. a)That under the relevant sections charging the accused it is essential that three things should be proved by the prosecution to the satisfaction of the Court; first, that the money was entrusted to theaccused person for a particular purpose; secondly, that he used it for someother purpose; and thirdly that such 35 misuse of the money was fraudulent and dishonest; that for the money to be considered as being "entrusted" no written evidence nor the creation of an official entrustment is required; that the phrase "fraudulently" and "without a claim of right madein good faith" in s.255(I) of the Criminal Code mean that 40 18 2 CL.R. 5 10 15 20 25 30 35 40 Azinas and Another v. Police both the possession and thetaking must be made intentionally, without a mistake of the person liable and it must be made without a claim of right made in good faith that the property belonged to another person; that, in other words, that phrase does not mean taking by fraud or defrauding (katadolievsi) butitmeansintentional anddeliberateand notunder themistake that the property belonged to some other person; that the fact that a persom liable of stealing may have a hope in the future to return the stolen money is a matter which can be taken into consideration in mitigation and does not amount to a defence; that it is safer to approach such case having in mind the provisions of the Cyprus Criminal Code instead of turning to the English Common Law which does not constitute directly the prototype of our legislation; that the purpose for which the money has been misappropriated is of no consequence once the owner has been deprived of his money; that the fact that such purpose was of a philanthropic nature or not is irrelevant because section 9 of the Criminal Code states that the motive is immaterial so far as regards criminal responsibility; that the fact that the appellant has not appropriated the money himself does not amount to a defence; that, therefore, the prosecution has proved that theappellant hasacted fraudulently; accordingly contention 6(
2. a)should fail. (Platritis v. Police

(1967)2 CL.R. 174followed; principle inR.v.Feeley[1913] 1 AllE.R.341,which was adopted by the Supreme Court of Cyprus inZissimides v. Republic

(1978)2 CL.R. 382,to the effect that the intention of returning the money would constitute a defence, not applicable because the Feelycase was decided under the provisions of the Theft Act, 1968,which are different both from the provisions of the LarcenyAct, 1916 and sections 255 and 270 of the CyprusCriminal Code and havethus no direct relevance to the interpretation oftheCyprusStatuteontheft; and becausethough CyprusCourtscanapplytheprinciplesoftheCommon Lawtothe needs of Cyprus the Theft Act, 1968, contrary to the Larceny Act, 1916, was not based on and did not purport to codify the Common Law definition of theft (pp. 82-85 post)). 6(b) That in the charge-sheet there are stated the persons which have entrusted sums to appellant 1and for what purpose and that heconverted the money and gaveit for other purposes from those for which they entrusted it to him; that before the trial started full details have been given by the prosecution to 19 Azinas and Another τ. Police

(1981)the other side as regards the persons who gave money and the persons to whom money was given; and that, therefore, the counts of stealing by agent referred to the owners of the money; accordingly contention 6(

1. b)should fail (see section 39(
2. f)of the Criminal Procedure Law, Cap. 155 and Archbold, 36th ed. p. 694 paragraph 1908). 5 6(
3. c)That since the owners of the money gave the money for the purposes referred to in thecirculars sent by appellant 1and that sincethesaid purposes have never beenamendedtheconsent of those who gave the money was given for that purpose only; 10 that since 24out of the300owners have not given their consent the prosecution has proved the element of consent, accordingly contentions 6(
4. c)and (
5. d)should fail (see section 255

(2)(

1. c)of Cap. 154). 6(
2. d)That the time of taking the money in this case was the 15 timeofgivingitfor purposes otherthan thosewhichwere referred to in the relevant circulars because the offence of stealing by agent is not a simple stealing under section 255 of C?p. 154 where the intention of appropriating money must be at thetime of taking; that this was a case where money was lawfully given 20 to the offender and later on he decided to misappropriate it, that, therefore, the prosecution has proved the presence of intention to deprive the owners of the money of their property, accordingly contentions 6(
3. e)and (
4. f)should fail.

(7)That once all the payments which were made and consti- 25 tuted the subject matter of the offences of stealing by a^ent were payments different from the purposes of the "SelfAssistance Fund", as well as the Fund of Co-Operativists in memory of Ethnarch Makanos III,it is not necessary or indeed no reason existed to have the identification of the money, that, 30 moreover, as the first appellant had deviated from the purposes of thetwo funds, thetrialJudge was notbound tomake a finding whether each particular donation from the fund fell or did not fall within the meaning of the circulars and give reasons for such finding; accordingly contention

(7)should fail. 35

(8)That as the provisions of section 31 of the Co-Operative Societies Law, Cap 114, are identical with the provisions of the Bankers Books Evidence Act, 1879, they constitute an exception tothehearsay evidence ruleandarenotcontrarytothe provisions 20 2 CL.R. Ailnas and Anotber v. Police of the Evidence Law, Cap. 9; accordingly contention 8 must fail (see Attorney-General of the Republicv. Theocharides and Others

(1973)2 CL.R. 75). 5 10 15 20 25 30 35 40

(9)That sincethe relevant ingredients of the offence of breach oftrust are(a)that theperson liablemustfirstbeapublicservant in the dischaige of his duties; (

1. b)that there must be a trust; (c)that there must bealso a breach of trust; (d)that the breach of trust must affect the public; and (
2. e)that there must exist a mens rea which in the present case is wilful negligence, that is,awilltobenegligent,anintentionalbreachofduty or reckless carelessness in the sense of not caring whether one's act or omission is or has not created a breach of duty; that since appellant 1 during the relevant period was a public servant and the success of the "Self-Assistance Fund" wasduo to appellant 1not as an individual but because of the post he was holding; that since having regard to the meaning of the word "trust" (vide pp. 102-3 post) the trial Judge rightly reached the conclusionthattherewasatrust;that sincethemoney,subject-matter of the relevant charges was given for purposes other than those for which itwasdonated;that sincethe Co-operativeemployees, for whom the money was collected, as well as those who have contributed to the "Self-Assistance Fund", were affected and that sincetheword "public"(seesection4ofthe CriminalCode, Cap. 154) means the public in its totality or any other part of it, the trial Judge rightly found that the public was affected; that since ordinary negligenceisnot enough to provethe offence of breach of trust but there must exist wilful negligence; and that since the trial Judge coircctly accepted that appellant 1 acted deliberately wilfully and without mistake that the property used by him belonged to another person, the trial Judge rightly found that the prosecution proved the ingredients of the offence of breach of trust; accordingly contention 9 should fail.

(10)That since the offences were described with every detail in the charge-sheet; that since during the trial the defence asked for particulais and after such particulars were given the defence has not raised again the issue of particulars it is too late to raise a complaint about absence of particulars at this stage; accordingly contention

(10)should fail (Kannas aliasPombas v. The Police

(1968)2 CL.R. 29 at pp. 35, 36, 37 and 38 followed). 21 Azinas and Another τ. Police

(11)That the trial Judge for the reasons given, accepted the evidence of the prosecution and rejected that of the defence; that in the particular facts of this case, this Court should not interfere because it is within the province of the trial Judge to believe ordisbelieve theevidence given by theparties; accordingly contention

(11)should fail.

(12)That appellant 1 could be found guilty of the offence of stealing by agent and, also, of the offences of abuse of office and breach of trust because the same set of facts can make more than one offence and because what matters is whether all the relevant ingredients of theoffence have been proved; accordingly contention

(12)should also fail.

(13)(After dealing with the principles governing aiders and abettors—vide pp. 118-120 post) That appellant 2 was rightly found guilty as an aidor and abettor because he knew the purposes of the"Self-Assistance Fund",because payments therefrom were made unlawfully contrary to thepurposes of the Fund and he was taking part in its administration; accordingly conten­ tion

(13)should fail. 5 10 15

(14)That appellant 2 was fully aware of the objects of the "Self-Assistance Fund" at least up to the change of its name 20 in September, 1978; that appellant 2 took it for granted or really truly believed that after thechange of its namethe purposes of the Fund were widened to cover other charitable purposes; that having regard to this belief of appellant 2 the trial Judge ought -to have given him the benefit of doubt regarding the 25 payments made after that date with regard to three of thecounts (counts 6, 12 and 18); accordingly the conviction of appellant 2 on counts 6, 12 and 18 should be quashed.

(15)(After stating the principles on which the Court of Appeal acts in appeals against sentence—vide pp. 128-129 post) That the Courts of this Country have treated with severity offences of this kind; that in the circumstances of this case the sentence imposed on appellant 1 is not manifestly excessive; accordingly the appeal of appellant 1 against sentence should fail.

(16)(After stating the principles governing disparity of sentence as a ground of appeal—vide pp. 138-141 post) That though the trial Judge, in dealing with appellant 2, said that in his case a differentiation was justified because the imposition of punish- 22 30 35 2 C.L.R. 5 10 15 20 25 Azinas and Another v. Police ment should be proportionate with his participation inthe crime he has failed to consider the warning that "the distinction which the sentencer has made in favour of the appellant is inadequate to recognise the difference between their cases" (see Principles of Sentencing by D.A. Thomas at pp. 71-73); that, therefore, this Court is bound to conclude that the extent of differentiation, regarding punishment, between appellant 2 and appellant 1 was wrong in principle, particularly in view of the role of appellant 1in the commission of the offences in question as compared with that of appellant 2; accordingly the sentence passed on appellant 2 is wrong in principle andmanifestly excessive and will be reduced to seven months on counts 2-5, 8-11 and 14-17. Appeal of appellant 1 against conviction and sentence dismissed. Appeal of appellant 2 against conviction and sentence partly allowed. Cases referred to: Wiseman and Another v. Borneman and Others [1969] 3 All E.R. 275 at p. 277; Rex v. Mustafa Kara Mehmed, 16 C.L.R. 46; R. v. Galbraith, [1981] 2 All E.R. 1061; R. v. Osborne [1973] 2 W.L.R. 209 at p. 216; Kokkinos v. The Police

(1967)2 CL.R. 217 at p. 227; Petri v. The Police

(1968)2 CL.R. 40 at pp. 84-89; Ioanr.ides v. The Republic

(1968)2 CL.R. 269; 30 R. v. Voisin [1918] 1 K.B. 531 at pp. 537-38; R. v. Prager [1972] 1 VV.L.R. 260; Vrakas and Another v. The Republic

(1973)2 CL.R. 139; Akritas v. Regina, 20 CL.R. 110; 35 Fatma Mehmet v. The Police

(1970)2 CL.R. 62; Attorney-General of the Republic v. Hji Constanti

(1969)2 C.L.R. 5 at pp. 8-9; Iacovouand Othersv. TheRepublic

(1976)2 CL.R. 114at p. 122; Platritis v. The Police

(1967)2 CL.R. 174 at pp. 184, 185, 188; King v. Grubb [1915] 2 K.B. 683 at pp. 689-90; Oktay v. Rex, 18 CL.R. 195 at pp. 198-99; Rex v. Williams and Another [1953] 1 All E.R. 1068; 23 Azinas and Another v. Police (1W1) Zissimides v. The Republic

(1978)2 CL.R. 382; R. v. Feely [1973] 1 All E.R. 341 at p. 344; De Lasala v. De Lasala [1979] 2 All E.R. 1146 (P.C); K.E.M. (Taxi) Ltd. v. Tryfonos

(1969)1 CL.R. 52; Universal Advertising andPublishing Agency v. Vouros, 19 C L . R . 5 87; HadjiTheodossiou v. ΛΌ«//'ίϊ am/ Another

(1970)1 C L . R . 310; Wilier and Another v. Attorney-General and Another [1954] 2 All E.R. 59 at pp. 70, 71; James Hudson

(1943)Court of Criminal Appeal 43; Attorney-General 10 of the Republic v. Theocharides and Others

(1973)2 C L . R . 75 at pp. 78, 79, 80; Kannas alias Pombas v. The Police

(1968)2 C L . R . 29 at pp. 35, 36, 37, 38; Johnson v. Youden and Others [1950] 1 All E.R. 300 at p. 302; 15 Director of Public Prosecutions for Northern Ireland v. Maxwell [1978] 3 All E.R. 1140 H.L.; Katsaronas and Others v. The Police

(1973)2 CL.R. 17 at p.35; Moon v. The Police

(1973)2 CL.R. 99 at pp. 103-104; Christofides v. The Republic

(1970)2 CL.R. 78; Reginalt Charles Edward Stiles-Altieri 20 v. The Police

(1967)2 C L . R . 140; Politis v. The Police

(1973)2 CL.R. 211; 4/xe/iri "Iroas" v. 7Vie Republic

(1966)2 CL.R. 116 at p. 118; Chomatenos v. ΓΑ* Λ>/ι«

(1979)2 C L . R . 119 at p. 124; 25 Christodoulou alias Farfaros v. The Republic

(1963)2 CL.R. 36 at pp. 37-38; Terlas v. 77ie iW/ce

(1970)2 CL.R. 30 at p. 34; Kakouris v. 77ie Police

(1972)2 C L . R . 42 at p. 44; Attorney-General of the Republic v. Mavrokefalos

(1966)2 CL.R. 93 at pp. 95-96; 30 Attorney-General of the Republic v. Lazarides

(1967)2 CL.R. 210 at pp. 212, 213; Nicolaou v. The Police

(1969)2 C L . R . 120 at pp. 122, 123; Coe, 53 Cr. App. R. 66 at p. 71; Λ. v. Robson and East

(1970)Crim. L.R. 354 at p. 355; R. v. Brown

(1975)Crim. L.R. 177. 24 3 5 2C.L.R. Azlnas and Anotherτ. Police Appeals against conviction and sentence. Appeal against conviction and sentence by Andreas Azinas and another who were convicted on the 9th April, 1981, at the District Court of Nicosia (Criminal Case No. 17841/80) as 5 follows:-appellant 1 on seven counts and appellant 2 onSix countsof theoffences of (a)stealingby agentcontrarytosections 255 and 270(

1. b)of the Criminal Code Cap. 154 (
2. b)breach of trust affecting thepubliccontrary to section 133 of the Criminal Code Cap. 154 and (
3. c)abuse of office contrary to section 105 10 of the Criminal Code Cap. 154 and were sentenced by Nikitas, S.D.J, to concurrent sentences of imprisonment ranging from six to eighteen months and six to twelve months, respectively. 15 L.N. Clerides with A. Triantafyllides, for appellant 1. E. Efstathiouwith St. Charalambous, for appellant 2. A. Evangelou, Senior Counsel of the Republic, for the respondents. HADJIANASTASSIOU J. read the following judgment of the Court. In the present appeals, the first appellant was found guilty by a Judge of the District Court of Nicosia, and was 20 sentenced to imprisonment in allfor 18months on the following counts:(
4. a)6 counts which refer to stealing by an agent contrary to ss.255 and 270(
5. b)of the Criminal Code Cap. 154; 25 (
6. b)6 counts which refer to breach of trust affecting the public contrary to s.133 of the Criminal Code, Cap. 154; and (
7. c)6 counts which refer to abuse of office contrary to s.105 of the Criminal Code, Cap. 154. For all these counts, the second appellant was found guilty 30 of aiding and abetting the first appellant in committing the offences referred to earlier contrary to s.20 of the Criminal Code Cap. 154, and was sentenced to concurrent terms of imprisonment for a period of 12 months. In addition, the first appellant was found guilty onthreemorecounts,viz.,counts 35 19, 20 and 21, which relate again to stealing, breach of trust, and abuse of office. The first appellant was originally facing 18counts,but three new counts were added in the course of the hearing. These offences can be divided into three categories: 25 Hadjianastassioa J. Azfauts and Another τ. Police

(1981)(

1. a)Stealing money by an agent contrary to sections255, 270(
2. b)and 20ofthe CriminalCodeCap. 154. Inthis category fall the first six counts. In accordance with the particulars of thesecounts,theappellantsfraudulently converted on various dates thetotal sumof £105,894.009 mils. As it appears from 5 the charges, that sumwas entrusted to thefirst appellant by Co-operative Societies and other persons whilst he wasthe Commissioner for Co-operative Development in order to pay the said sums to displaced and unemployed co-operative employees and thefirst appellant aided by the second appel- 10 lant paid the said sums to third persons for purposes other than those of the Self-Assistance Fund. Thenames of those persons to whom themoneywas given, and the corresponding sums which they took are set outinsixschedules attached to the counts under letters A to F.Furthermore, inaccordance 15 with theparticulars of the charges, thetime of committing the offences andthestolen amount in money is as follows:First count :Between 31.12.74 and21. 4.75—£70. Second count:Between22. 4.75 and24.11.75—£ 9,595.510 Third count :Between 25.11.75 and 12.12.76—£ 5,622.775 20 Fourth count:Between 13.12.76 and 8.11.77—£25,055.620 Fifth count :Between 9.11.77and 18. 9.78—£43,081.184 Sixth count :Between 19. 9.78 and 3. 1.79—£22,468.920 It should beobserved thatoriginally the said sum inthe sixth count was £85,446.735 mils but the trial Court amended on 25 its ownthis count onthe 24th January, 1981,andreducedthe said sum to £22,468.920 mils, and amended the period the offence wascommittedas being the3rdJanuary, 1979, instead of the 8th November, 1979. (
3. b)Abuse of office by a public servant contrary to sections 30 105 and20of the Criminal Codewhich isthesubject ofcounts 7-12. As it appears from theparticulars of the charges,and the evidence, itwasthe same setoffacts onwhich the first six counts were based which constituted these offences also. (c)Abuse oftrust from apublic servant contrarytotheprovi- 35 siοas of sections 133 and 20of the Criminal Codewhich is the subject ofcounts 13-18. Itshouldbeaddedthattheprosecution bases its case onthesame facts onwhich it relies inrelation to counts 1-12. 26 2 CXJL Arinas and Another v. Police Hadjianastassioa J, The second appellant was charged with aiding and abetting under section 20 the first appellant. The amendments made bythe trial Court withregard to count 6do not affect the sum, the subject of counts 12and 18,which remains the same, viz., 5 £85,446.735. The sum which appears in the counts for abuse of power and abuse of trust is £168,871.824 mils. Counts 19-21 are against the first appellant only and fall within thefirst,second and third group of charges respectively. They concern a sum of £24,500.000, entrusted to him by the 10 Co-operative Society Comarine Ltd. THE FACTS: The first appellant was appointed by the then Greek Communal Chamber as Registrar of the Co-operative Societies on 1stDecember, 1960. Later onwhenthe said Greek Communal 15 Chamber was dissolved by the provisions of Law 12/65, all services have ceased to exist asfrom 31stJanuary 1965,and all postsheld byalltheemployeeswereconsidered asbeingvacant. Indeed, inaccordance withs.l6(
4. l)of Law 12/65, everyemployee who wasin the service of the Greek Communal Chamber came 20 under the jurisdiction of the Republic, and was entitled once it was practicably possible, to be emplaced to the same post which he was holding earlier. In effect, as from that date, allpersonsemployedwerereinstated andbecamepublic seivants in accordance with the provisions of s.16 of Law 12/65. In 25 the meantime, the first appellant had addressed a letter to the Public Service Commission dated 6th October, 1967, seeking a re-appointment and an emplacement to the previous post he held. (See exh. 1). On 15th May, 1967, on behalf of the Director-General of 30 theMinistry ofCommerceand Industry, a letter was addressed tothe Greek Commissioner ofCo-operative Societies, informing him that the matter of hissalary would be settled by the Public ServiceCommissionwhenhewouldbepostedtothe appropriate post, in accordance withtheprovisions of s.l6(
5. l)of Law 12/65. 35 On 6th October, 1967, the first appellant addressed a letter to the Chairman of the Public Service Commission, and having referred to theprovisions of'Law 12/65,heinvited the Commissiontoemplacehim tothepost heheld earlier inthe Communal Chamber before its dissolution on the 1st April, 1965. This 27 Hadjianastassioa J. Azfnas and Another v. Police

(1981)letter was signed by Mr. A. Azinas in his capacity as Commis­ sioner for Co-operative Development and Registrar of Co­ operative Societies. On 21st December, 1967, a letter was addressed to theChair­ man of the Public Service Commission on behalf of the said 5 Director-General, and after leferring to the decision under No. 7319 of the Council of Ministers, dated 14th December, 1967, regarding the approval of the scheme of service for the post of Commissioner of Co-operative Development and of the General Secretary in the Department of Co-operative 10 Development,invited thesaidCommission toproceed toemplace Mr. A. Azinas to analogous posts in accordance with s. 16

(1)of Law 12/65. The author of this letter pointed out that Mr. Azinas had been carrying out the duties of the Commissioner for Co-operative Development as from 1st December, 1960. 15 (See exh. 2). On 28th December, 1967, the Public Service Commission addressed a letter to Mr. Azinas through theDirector-General of the Ministry of Commerce and Industry, and informed him that the Commission decided in accordance with s.16 of Law 20 12/65 to emplace him to the post of Commissioner οΐ Co­ operative Development in the Department of Co-operative Development on a permanent basis as from 15th December, 1967. (See exh. 3). It appears that according to the schemes of service, the post 25 of the Commissioner of Co-operative Development is a first entry and promotion post. The duties and responsibilities of the post in question are as follows:Management of the Department of Co-operative Develop­ ment and responsibility for the promotion, development and 30 orderly operation of the co-operative movement in the island. Exercise of the power and duties provided by the relevant laws and regulations. Advisor to the Minister on co-operative matters. Represents the Co-operative Department in various committees and bodies. Performance of any other duties 35 which may be assigned to him. Required qualifications: (

1. a)For fiist appointment: university diploma or degree in economics, commeicial or other appropriate sciences. Very 28 2 C.L.R. Azinas and Another τ. Police Madjiaaastassion J. good knowledge of theco-operativism and of the co-operative movement of the island. Knowledge of economicand financial matters of the island. (
2. b)For promotion: Higher education, preferably university 5 diploma or degree in economic, commercial or other sciences. Very good knowledge of the co-operative theory and practice and the co-operative and other related legislation. Knowledge of economic and financial matters of the island. Long and verygoodserviceinthedepartmentofco-operativedevelopment. 10 (
3. c)For both instances (
4. a)and (b): Excellent knowledge of the Greek and very good knowledge of the English language. Administrative and organizing ability, judgment, initiative, impartiality, fairness and integrity of character, ability to esta­ blish and maintain harmonious relations with the officials 15 and members of the co-operative movement of the Republic. It appears further that the post in question was approved by the Council of Ministers by its decision under No. 7319 dated 14th December, 1967. Whilst at this point, it may be noted that with the accession 20 to independence, the Co-operative movement in Cyprus saw a marked progress*. It embraced every scheme of economic activity and its members increased considerably. Unfortuna­ tely, the steady progress that our island was experiencing was abruptly interruptedby the coupd'etat, organized by theGreek 25 junta,andby theTurkish invasion which followed it, as a result of which 200,000 people were displaced from their homes in the occupied north part of the island and became homeless in their own country, and as a result, their Co-operative Societies were disrupted and their employees remained without employ-~ ment. Indeed, as a result of the coup d'etat, the President of the Republic,Archbishop Makarios,was forced to leave the island, and the first appellant joined him in London. Later on the first appellant returned to Cyprus, and having seen the plight 35 inwhichthedisplaced employees of the Co-operativemovement found themselves, he decided to convene a meeting with a view to findingways and means to assist them. On 22nd December, 1974, at a meeting convened by the first appellant at the Mimoza cinema, a great number of displaced 29 Hadjianastassioa J. Azinas and Another ?. Police

(1981)co-operative employees and others attended, with a view to findingways and means to improve the position of those unemployed displaced persons. The meeting was presided by thefirstappellant, and after they elected a committee of 5,and explained the purpose of such meeting, it was then decided 5 to set up a fund for the rehabilitation of the displaced cooperative employees by granting to them financial help. With that in mind, and fully aware of the urgency of the matter, thefirstappellant, on 30th December, 1974,called Mr. Glafkos Petrides, P.W.I7, the assistant Manager of the Central 10 Co-operative Bank which is also a Co-operative society, as wellastherestofitsCommitteemembersto hisoffice. Indeed, according to the evidence of Mr.Petrides, the appellant gave them instructions to makeapleatoall Co-operativeemployees, as well as to Co-operative Societies to contribute to a fund 15 which would be utilized for the displaced employees who lost their jobs. In addition, Mr. Petrides told the Court that the first appellant gaveto thema circular whichwould becirculated the next day, on 31st December, 1974,to the various Co-operative Societies andwhich ineffect wasreferring tothepurposes 20 which they had discussed earlier at the meeting. (See circular 191). No doubt the first fund created was the Co-operativists Self Assistance Fund. Questioned further, Mr. Petrides added that the circular whichhasbeenhanded tothemwassignedbythefirstappellant, 25 and having explained to them the contents of the circular, he informed them also that in the meantime, and because it was Christmas, he had used a certain amount from the Inspection and SupervisionFund. Hefurther addedthatthefirstappellant informed them that the total amount which was used for that 30 purpose viz., for the payment to unemployed co-operative employees and those in need of funds was the sum of£20,000, and he had asked them, in their capacity as members of the committee to approve a temporary credit accommodation. He furthei told them that he would put bvfore them a list of 35 the cheques issued as well as the names of those to whom the cheques were issued from the said fund. The witness added that the Commissioner went on to say that after his plea and after sending that circular, he expected that money would be coming in. (Seecircular exh. 191signed byhim). Questioned 40 30 2 C.L.R. Azinas and Another v. police Hadjianastassiou J. further as to what actually was said by the first appellant at that meeting, and not his own conclusions, he emphatically said "that was exactly what was said, it was not my own conclusion". 5 Furthermore, the witness stated that after the circular was sent to the various Co-operative societies, it was published also inthepress,and inthe light ofthe reasons given at the meeting by the first appellant, the Committee agreed to approve the amount of £20,000 used by the first appellant. It appears 10 further that during that meeting, minutes were kept and were produced at the trial as exhibit 214. The witness conceded that he prepared the minutes himself, he signed them and had alsodecidedthatthesaidminutesshouldalsobearthesignatures of Messrs. Th. Malekides as Chairman, Elia Loizou, Loizos 15 HjiLoizou and Panayioti Karayianni who in the meantime died,i.e.thePresident and thethreemembersof theCommittee. Furthermore, Messrs. G. Demetriou, the 5th member of the Committee, the Chairman and Renos Clerides the Manager of the Bank, had signed them and added that they had taken 20 note of the minutes prepared. When the meeting wasover, he went to his office and within a few days after the first of the year he proceeded to put into effect thedecision ofthecommitteeand gavewritten instructions to Mr. Andreas Ioannides (P.W.6), who was in charge of the 25 sub-branch as to how he would act in order to put the said decision into effect. (See exhibit 188). Thewitnessalsosaidthatitwashissignatureonthatdocument andaddedthat acopyofthat letterwascirculatedtothegeneral accountant and the heads of the other branches. Regarding 30 exhibit185,hesaidthatthiswassentfrom theoffice oftheCommissioner of Co-operative Development and in that list there appeared thechequeswhichhavebeenissuedfrom theInspection and Supervision Fund in favour of the distressed Co-operative employees, about whom the Commissioner of Co-opeiative 35 Development had spoken to him in his office on the 31st December, 1974. Then he went on to add that in his letter he enclosed also that list (see exhibits 192-196). Questioned further he said those exhibits were the circulars which have been issued from 31 Hadjianastassioa J. Azinas and Another v. Police

(1981)the Commissioner for Co-operative Development which had been sent to all the committees of Co-operative Societies and were signed by the first appellant as the Commissioner for Co-operative Development. The witness said also that he had occasion to seeexhibits 5-170, thecheques whichhavebeen 5 signed by the first appellant. The witness added that towards the end of September, 1977, he saw again the first appellant with regard to the opening of a new account sometime at the end of October, 1977, when he called him to his office and informed him that he was going to create a fund which would 10 be used by the Co-operative Societies. The reason he was called by the Commissioner was to ask him whether that fund could bs kept separately and secretly in the Bank. In the Bank there was a secret ledger where there are certain details which are kept from the general directorate and from the general accountancy department. He then went on to add that when he said general accountancy department, it was to be understood that he was referring to the general accountant and his assistant. Indeed, he said this constitutes part of the whole system of a bank. He further explained that there was nothing illegal in that and the secret ledger waskept by him in the strong room and the only people whohad accessto it werethe Secretary-Manager, theAssistant, and the General Accountant as well as his assistant who were making the entries in that ledger. Towards the end of November, the Commissioner handed to him a cheque which was issued by Comarine on 22nd November, 1977,for the benefit of theCommissioner for Cooperative Development Self-assistance Fund of Co-operative Societies and the Fund of Audit and Supervision for the sum 30 of £100,

1. (See exhibit 215). On 31st August, 1978, he was again given by Mr. Azinas another cheque issued by Comarine for the sum of £26,000and both these two cheques were credited to the account to which he referred earlier. (See exhibit 216). That account, was 35 duly certified, and was of 4 pages, and are true copies of the originals. (See exhibit 217). He issued a cheque book, and in accordance with his instructions, the general accountant issued the cheque book No. 169676-169700which hedelivered personally to Mr. Azinas, At that time, the Commissioner, 40
2. 15 20 25 2 CL.R. 5 Azinas and Another v. Police Hadjianastassiou J. Mr. Azinas, made it quite cleaTto him that the whole movement of the accountandof the handling of it would be his own respon­ sibility and only after it bears his own signature. The title of that account was Commissioner for Co-operative Development—Fund, and on those cheques it was written in Greek Δ.Σ.Α. General Accounts Department. He concluded that the measures which were taken by them were for the account to remain secret; and in all the sums of £216.000 were paid into that account. (See exhibit 217). 10 Out of that fund, on 28th December, 1977, cheque 169676 was issued in favour of the Co-operative Credit Society of Trimiklini, for the sum of £21,
3. (See exhibit 218). On 21st December, 1977, another cheque was issued under No. 169700 in favour of the Co-operative Grocery Kambou Ltd. 15 for the sum of £2,
4. (See exhibit 219). 20 25 On 22nd December, 1977, there was another cheque under No. 169678 which was issued in favour of Σ.Ε.Γ.Ι.Δ.Ε.Π. of Pelendri and Kato Amiandos for the sum of £1,
5. (See exhibit 220). All three cheques bear the signature of Mi. Azinas as Commissioner. On 22nd March', 1978, this secret account was debited with the sum of £70,000 because of a cheque which has been issued by Mr. Azinas in favour of the Audit and Supervision Fund. The balance of that account remained credited in the bank until March, 1980, but on 6th March, 1930, the Commissioner for Co-operative Development wrote to the Co-operative Central Bank and as a result this account was closed. (See exhibit 217). At the same time, he credited with the balance the Co-operative Society, Self-assistance Fund, which was £31,
6. In addition, Mr. Azinas addressed a letter to the Central Co-ope­ rative Bank, dated 15th September, 1978, giving instructions to amalgamate the two accounts kept viz., Commissioner for Co-operative Development in memory of Ethnarch Makarios, 35 and Commissioner of Co-operative Development—Self-Assist­ ance Fund of Co-operativists, into one account, under the name of Self-Assistance Fund. 30 Dealing further with exhibit 200 A, the witness said that it was a letter dated 16th September, 1978, which he had addressed 33 Hadjianastassioa J. Azinas and Another τ. Police

(1981)to persons in charge of the sub-branches of the Co-operative Central Bank Limited giving them instructions with regard to the amalgamation of the aforesaid accounts in accordance with the written instructions of Mr. Azinas. In addition he said a cheque was sent tohim bearing the name 5 of Commissioner of Co-operative Development—Self-Assist­ ance fund. In fact, he added, a lot of cheques were used by Mr. Azinas and there was no complaint at all that the account was no opened properly. Speaking further about exhibits 207, 209 he explained that exhibit 207 is a letter written by 10 Mr. Azinas in his capacity of Commissioner for Co-operative Development, to the Co-operative Central Bank on 30th November, 1979 in which he was giving written instructions to the effect that every balance (of the account) which was to be found in the account under the name Self-Assistance Fund, 15 to be transferred to the Co-operative Society Self-Assistance Limited. At the same time he was seeking the closing of the account of the Self-Assistance Fund. That new account would be handled by the committee which was recently elected. Dealing further with exhibit 209 he explained that it was a 20 letter from the Co-operative Society Self-Assistance Limited, dated 7th December, 1978, and was signed by Mr. P. Orphanos, the second appellant, the secretary of Co-operative Society Self-Assistance Limited. Having further stated that he knew the signature of Mr. Orphanos he added that when he had the 25 latest developments of that account he addressed a comment to the secretary-manager of the bank whose name appeared in the application and as a result it was placed in advance before the convening of the committee of the bank on the 18thJanuary, 1980, and the said committee had approved the loan to the 30 Co-operative Society Self-Assistance Limited. Questioned further as to who had signed the letter exhibit 190 his reply was that it was Mr. Azinas who signed in his capacity as Com­ missioner for the Co-operative Development and related to the Co-operativists Self-Assistance Fund. Pausing here for 35 a moment, this letter dated I4th January, 1975, (exhibit 190) under the heading Co-operativists Self-Assistance Fundreads :"Παρακαλώ σημειώσατε ότι έχει άποφασισθη ή ΐδρυσις Ταμείου Αλληλοβοήθεια? Συνεργατιστών πρώξ παροχήν βοηθείας ε!$ παθόντας Συνεργατιστάξ έκ των τελευταίων 40 τραγικών γεγονότων. 34 2 C.L.R. Azinas and Another v. Police Hadjianastassioit J . 2. Ώ ς ή άπόφασις της υμετέρας Επιτροπείας,παρακαλείσθε δπως:(α) ανοίγετε σχετικού λογαριασμόν είς τον όποιον Θακατα­ τίθενται δλαι αί είσφοραΐ άπό οιανδήποτε πηγήν δια τόν ανω σκοπόν καϊ άπό τόν όποιον θά πληρώνωνται οϊ διάφοροι δικαιούχοι, 5 (β) εμβάσετε είς τό Ταμεΐον ΈΕελέγϋεως και Επιθεωρήσεως τό ποσόν τών λιρών δεκαεπτά χιλιάδων πεντακοσίων "δεκαεπτά μόνον (Άρ. £17,517.-) ώς ό έπισυνημμένος κατάλογος προς τακτοποίησιν τοΰ λογαριασμού μεταΕύ τών δύο ταμείων, 10 (γ) μέ εφοδιάσετε μέ βιβλιάριον επιταγών διά τών οποίων να διενεργώ τάς μελλοντικός πληρωμάς. 15 3. Τήν διαχείρησιν τοΰ Ταμείουθάάσκήπροςτούτο εκλεγείσα Παγκύπριος "Επιτροπή Οπό τήν προεδρίαν μου. Δικαίωμα υπογραφής έχει ό Διοικητής Συνεργατικής Αναπτύξεως". And in English it reads: "Please note that the establishment of a Self-Assistance Fund for rendering help to co-operative employees who have suffered by the last tragic events has been decided. 20 2. According to the decision of our Committee, you arc requested to: (a) open a relative account in which all contributions from every source for the above purpose will be depo­ sited and from which the various beneficiaries will be paid, 25 (b) put into the Audit and Supervision Fund the sum of seventeen thousand five hundred and seventeen pounds only (No. £17,517.-) as the attached list for settlement of the account between the two funds, 30 (c) provide me with a cheque book with which I shall effect the future payments. 3. 35 The administration of the Fund will be effected by a Pancyprian committee elected for this purpose, presided over by me. 35 Hadjianastassioa J. Azinas and Another v. police

(1981)The Commissioner of Co-operative Development has the right to sign". See also theevidence of P.W.6,Andreas Ioannides,who was in charge in one of the branch of the Central Bank of Nicosia, at p. 91 on this issue. 5 According to Mr. Renos Clerides (P.W.8) whose position at the Co-operative CentralBank was thatof a secretary-manager, the circular, exhibit 199 was addressed to all committees and to all secretaries of all the co-operative societies of Cyprus. Hefurther addedthatitwassignedby Mr.Azinasinhis capacity 10 as Commissioner for Co-operative Development and was bea­ ring the title Contribution of Co-operative Societies in memory of Ethnarch Makarios. In that circular, exhibit 199, theCom­ missioner was appealing for funds in order to enable him to build a hospital for children. Because of that circular, he 15 himself circulated an internal circular (exhibit 198), dated 29th August, 1977, to all heads of the sub-branches of the Co­ operative Central Bank signed by him, and bearing the title "Contributions of Co-operative Societies inmemory ofEthnarch Makarios". When hewas asked by counselfor theprosecution 20 as to whether hs knew that the hospital referred to earlier was finallybuilt, counsel for the defence put forward the argument that such question was irrelevant because therewas no charge against his client which related to the Fund of Ethnarch Makarios. Onthecontrary,counsel for theprosecution argued 25 that the question was admissible in evidence because anamount of about £28,000 was collected from funds. The trial Court, having overruled the objection, pointed out that once there was sufficient evidence regarding that matter, Mr. Renos Clerides couldreply,andheemphatically saidthatasfar ashewas aware, 30 such hospital was not built. Dealingalso with theminutesof theCommitteeof theCentral Bank dated 17th October, 1979, at p. 2, he said that he was also present and had this to say regarding the third item on the agenda (exhibit 225): Account "Commissioner Co-ope- 35 rative Development—Self-Assistance Fund". Theminutesread: The Commissioner informs theCommitteethat thesaidaccount for which Δ.Σ.Α. is responsible personally and is using it, shows today a debit balance of £15,216.211 mils". Then the minutes go on: "The Committee approved the 40 36 2 C.L.R. 5 Azinas and Another v. Police Hadjianastassiou J. said overdraft, in spite of the fact that it was mad^ contrary to the provisions of section 34

(1)of the Co-operative Societies Law Cap. 114 and because the said Fund does not constitute a legal person". Finally the minutes further read: "The General Manager is authorized to ask from Δ.Σ.Α., Commis­ sioner of Co-operative Development to pay off the said overdraft the sooner". (See exh. 226). This was indeed a stern warning by the Committee to Mr. Azinas and in the light of this decision Mr. Renos Clerides 10 who was at the meeting,as secretary-manager had no alternative and indeed addressed a letter to Mr. Azinas in his capacity as Commissioner of Co-operative Development, dated 18th October, 1979, and in Greek it reads: 15 20 25 "Κύριε, Λογαριασμός: 'Διοικητής Συνεργατικής ΆναπτύΕεωςΤαμεϊον 'Αλληλοβοηθείας'. Παρατηροϋμεν ότι ό ανωτέρω παρ' ήμϊν λογαριασμός δια τόν όποιον είσθε προσωπικώς υπεύθυνος έφ' όσον τό Ταμεϊον δέναποτελείνομικόνπρόσωπον, παρουσιάζει σήμερον χρεωστικόν ύπόλοιπον έκ £51,266.811 μίλς (Λίρας Πεντή­ κοντα Μίαν Χιλιάδας Διακοσίας ΈϋήκονταεΕκαΐ 811 Μίλς). Τό παρατράβηγμα τοϋτο γενόμενον κατά παράβασιν τοΰ άρθρου 34

(1)τοΰ περί Συνεργατικών 'Εταιρειών Νόμου συνιστά παράνομον χορηγίαν δανείου ύπό της ημετέρας Τραπέζης ως έκ τούτου δέ δέον όπως έΕοφληΘή τό συντομώτερον". And in English it reads: 30 35 "Sir, Account: 'Commissioner Co-operative DevelopmentSelf-Assistance Fund". We have noted that the above mentioned account for which you are personally responsible once the Fund does not constitute a legal person, shows today a debit balance of £51,266.811 mils. The overdraft which has been made contrary to section 34

(1)of the Co-operative Societies Law constitutes an illegal act of the loan by our bank and therefore it should be paid off the sooner". 37 Hadiiana5tassiou J. Azinas and Another v. Police

(1981)In spite of the fact that there was no reply by the Commissioner, on 18th January, 1980,the Committee of the Co-operative Central Bank at its meetinghad approved a limited credit to theCo-operative Societyof Self-Assistance Limited. Present were Mr. Th. Malekides, the Chairman of the Committee, H.Loizides,amember,L.Hadjiloizou amember,G. Demetriou a member, and C. Marangos a member. Present were again both Mr. Renos Cleridesand Mr. Glafkos Petrides. In exhibit 227on the second page, it appears that the amount which was approved was £80,000 to the Co-operative Society, Self-Assistance Limited. Furthermore, on the third page of the same exhibit, we have this warning:- 10 "It is decided furthermore that all the above companies be notified that in no event the withdrawal of any sum in excess of their above approved credit limit will any more be permitted and that in case of non-compliance by them with the above conditions, the cheques issued by them will be returned. Moreover, the debited interest for 1979or other interest for previous years already debited, must be paid off within a reasonable time, this being defined after an agreement with the debtors. Likewise, the debtor companies should arrange that the interest for the current year be paid off towardstheendof 1980astherewillbenocaseofincreasing their credit limits because of the debit of these interests. ^ With regard to the limits granted as above to SOGEA Ltd. and the Co-operative Society for Self-Assistance Ltd., it is clarified that they will be used exclusively for paying off amounts equal to overdrafts of the accounts of 'SOGEA*(to be established) and 'C.C.D. Self-Assistance Fund' respectively. These limits will be for an indefinite duration of time". There was further questioning by counsel and Mr. Clerides said that he knew the signature of the first appellant and he had seen his signature on many occasions and when he was " signing letters and other material. But with regard toexhibits 197, 201-205 he said that it wasa list containing contributions and there was a covering note which there is in each of the exhibits and it bears the signature of the responsible officers 38 20 30 2 C.L.R. Azinas and Another v. Police Hadjianastassiou J. of the saidbank. Hethenadded that in addition it wassigned by him personally and by the three members of the governing CommitteeThere was further evidence and indeed we do not think it 5 isnecessarytodealwith allprosecution witnesses,but according also to P.W. 10 Nicos Gregoriades, the secretary"of the Cooperative Credit Society of Strovolos he said that towards the end of 1974and the end of 1976,he had received circulars from the Commissioner of Co-operative Development (see 10 exhibits 191-194) inviting them to make contributions to the Co-operativists and to the Self-assistance Fund. He convened a meeting of the Committee, and on 3rd February, 1975, the Committee is recorded as saying this: 15 20 25 30 35 "In response to a circular of the Commissioner of Cooperative Development, the Committee has decided to contribute the sumof£1,000.—inaid ofthe Self-Assistance Fund for Co-operative employees". The next day he addressed a letter to the Commissioner of Co-operative Development dated 4th February, 1975, for the approval of that sum and when he received a reply on 8th February, 1975, that the sum was approved, he deposited it to the Co-operativists Self-Assistance Fund. Furthermore, thewitnessaddedthatalwaysactingon thebasisofthecircular, he submitted to the Committee of the Co-operative to approve a further amount of £500 for the fund in question. Indeed, he said that he had addressed a letter on 28th February, 1975, to the Commissioner and received a reply on 8th July, 1975, approving that amount. The second decision reached by the Committee reads as follows:- "It is decided that we should contribute the sum of £500—a second instalment, for the reinforcement of the Fund for Displaced Co-operative employees". Questionedfurther onwhichcirculartheyactedandfrom whom, his reply was from the office of Co-operative Development. In cross-examination the witness said that he received only two circulars and not six. He further added that in any event he had seen only two. As wesaid earlier in the light of the statements of a number of witnesses when they were receiving circulars addressed to them by the first appellant they have done their very best to 39 Hadjianastassioa J. Azinas and Another v. Police

(1981)help as much as possible in order to alleviate the suffering of their colleagues, but since all counsel appearing in the present case have attached quite rightly, a lot of importance to these circulars, we propose reading right away the first one which wassent to all co-operative societies. The circular in question, under the heading "13th salary 1976", says: 5 "The conditions prevailing in our island are known to everybody. It is known to everybody that hundreds of co-operative societies have suffered irreparable damages. It must be a common secret to all of us that hundreds 10 of our colleagues remain unemployed, homeless and away from their houses. In spite of all this, we cannot deprive anybody of the 13th salary which ispaid in order to cover the increased family expenses during these festive days. The duty towards our colleagues who remained without 15 any income is imperative. For these reasons, I invite today your feelings for colleague solidarity. As it has been written in the press, a Self-Assistance Fund for cooperative employees has been established in order to meet the various needs of our colleagues. This fund will be 20 aided by all co-operative societies but in any way by the employed and paid co-operative employees also. It is approved, therefore, that the 13th salary be paid to all co-operative employees for the year 1974, provided that 25% of the payable sum will be withheld for the benefit 25 of the Self-Assistance Fund for Co-operative employees. From the I3th salary will be cut also the amount specified byLaw54/74fortheReliefFundfor DisplacedandStricken Persons. The 25% withheld from the whole of the 13th salary will be deposited with the Central Co-operative 30 Bank to the credit of the Self-Assistance Fund for cooperative employees and will be used for the purpose of assisting our unemployed colleagues. At the same time I appeal to the Committees of all the co-operative societies to approve a good amount on behalf of the society which they direct for the benefit of the SelfAssistance Fund for Co-operative employees. The decisions of the committees shall be submitted for approval as always. I hope and believe that both the 40 " 2 C.L.R. 5 AzinasandAnotherv.Police Hadjianastasslou J. co-operative employees as well as the committees of the Co-operative establishments will show by acts also, their love and solidarity for colleagues which are imposed by the difficult moments we are facing in order to prove to the public of Cyprus that the slogan 'EACH FOR ALL AND ALL FOR EACH ONE' continues to exist and apply in our country " Inanother circular (exhibit 196),thefirstappellant onceagain praised the work of everybody and had this to say:- 10 15 20 25 "Created for Self-Assistance Fund through which it tried with understanding and affection to heal the wounds of all colleagues Co-operative employees of the displaced Co-operative Societies. It took and takes care for the Co-operative Societies. It took and takes care for the equipment of the Sanitary Services of the State with the appropriate instruments for the fight against anaemia, takescareofthe Institutionsfor mentallyretarded children, it brought doctors from abroad and took care of sick people to go abroad for treatment etc. You are therefore invited, colleagues, as soon as you get this circular, to meet and decide the amount of the contribution which you have to deposit in the same way as last year, through the Co-operative Central Bank for the benefit of the Self-Assistance Fund. Your contributionmustbegenerousbecauseasithasbeenstressed before, Attilahasbequeathed tousnumerousand seriouswounds". It appears that from the trend of allthecirculars inquestion the first appellant has never informed the persons or Societies whowerecontributing to theFund thatthe purposeoftheFund 30 hadchanged,but continued tostateinthe,circularsthatthe main purpose of the fund was for the displaced unemployed cooperative employees in order to continue collecting large sums for his various funds. FACTS REGARDING APPELLANT 2: 35 The second appellant, Panayiotis Orphanos, in November, 1957, was granted a scholarship from the Aichbishopric in order to study agricultuie in the Aristotelion University of Thessaloniki. In 1961,and before he succeeded in getting his 41 Hadjianastassioa J. Azinas and Another v. Police

(1981)diploma, he was elected unanimously as general secretary of PEK, (The Pancyprian Farmers Union), a post which he held until August,

1. He obtained, however, his diploma in November,
2. Finally,hewasappointed, on 1stNovember, 1966,to serve with the Co-operative Societies in charge of Co- 5 operative enlightenment and propaganda. According to the terms of the letter addressed to him by the Greek Registrar of Co-operative Societies, his appointment was on a temporary basis and his salary was £642 reaching the sum of £900 and in addition he was receiving a monthly 10 cost of living allowance. In this letter, it was made clear to him that he was not a civil servant and his duties as we said earlier, were the enlightenment and propaganda, as well as any other duties which would have been assigned to him. In addition, it was made amply clear under the heading 15 "duties" of the post in question, that he would be directly responsible to the Registrar, the first appellant. His salary was coming from the Inspection and Supervision Fund. This Fund, he said, was in the hands of theCommissioner of Cooperative Development. On being asked by his counsel 20 appearing before the trial Court whether he had any right to refuse to obey any warrant or any instructions of the Commissioner of Co-operative Improvement, his answer was that according to his appointment-no. Wethink it is right to state that the contract of appointment 25 of the second appellant to the post in question wasrightly described by counsel appearing for him asharsh, becauseunder the term "termination of appointment", we read:"Your appointment can be terminated at any time without giving you any reason and once you will be given by me 30 one month's written notice or instead of giving notice tobepaid toyoua salary and costoflivingofone month". He could, however, terminate his appointment himself, after giving to the Registrar one month's written notice. The second appellant accepted the post in question, expressing his 35 thanks to thefirstappellant, on 29th October, 1966(see exhibit 261). On 18thFebruary, 1975,hewasappointedbytheCo-operative 42 2 C.L.R. Azfnas and Another τ. Police Hadjianastassiou J. Development as Director of College (temporary) with a salary scaleof£2004χ £96—£2IOOX£120—£2820.His salary atthetime was £2,460 p.a. plus authorized increment of £120, and in all he was earning £2,580 as from 1st January,
3. (See exhibit 5 262). In themeantime,in 1973,hevisited various countriesinorder to study the system used by the co-operative colleges which have been functioning in Greece, Great Britain, Germany, Israel and Sweden. Furthermore,he was in touch with inter10 nationalco-operative alliance and with theinternationallabour office with theviewof creatingin Cyprus aco-operativecultural centre which could be used not only for the needs of the co­ operative movement of Cyprus, but also for the needs of co­ operative movements of the Middle East countries. 15 In praising the success of the college, the second appellant said that in the domain of education and enlightenment the college was a success. Furthermore, he said a number of professors visited our country with a view of following what was going on in the college, and who expressed the wish of 20 starting a closer co-operation with our country. Indeed, he added, the college became known to a lot of people abroad. In the college he was employing nine persons and there was alsoanothereconomistwhowas teachingeconomicsand dealing with the subjects of management and marketing. In addition 25 therewere anothertwoeconomistswhoarestatisticiansandtheir work was thecollection of various materials from all co-opera­ tivesocieties of Cyprus; and thatthe collectionof that material finally would be studied by the department of co-operative development. Therewerethreeotherfemale employees working 30 as clerks, typists and telephone operators. Questioned further as to what were actually his duties in the college, he said that he was in charge of the functioning of the college. He was organizing cycles of lessons regarding the principles of the co-operative movement, and lecturing on co-operativism. 35 Speaking as to the Self-Assistance Fund and as to what was the procedure in completing and delivering the cheques to those who were entitled, he said that since Christmas of 1974, they had instructions that the college wculd be dealing and also handlingthedelivery of those cheques. They were also keeping 43 Hadjianastassiou J. Azinas and Another τ. Police

(1981)a fist (exhibit 189), which was prepared by the department of Co-operative Development. Because they carried out their work regarding the distribution of the cheques, they were again instructed to deliver the cheques from the Self-Assistance Fundfor theEaster of

1. Indeed,headded,after anannoun- 5 cement in the press, to the effect that the cheques were to be distributed from the College, the displaced persons entitled were calling to collect their cheques from the college. The personnel of the College were again used for the next years of Christmas and Easter. Indeed, he said, there was a 10 further announcement on the same subject both in the press and on the radio calling on those who were entitled to the cheques to pass from the college and receive their cheques. (See exhibits 171, 182 and 189). He further stated that for the Easter of 1975, the list of 1974 was used as abasisfor thosewho were entitledfor theyear
2. This list was preparedby thetypist. Herepeated thatthe whole list of names who were entitled to receive funds was prepared by the employees of the college and had nothing to do with the list or with the sums paid, and/or the persons who would have been receiving help from the Self-Assistance Fund. He admitted however, that when instructions were given by the firstappellant, the names of those persons were put on the list. (See exhibits 311-314, which show that those names were added on the list). Questioned as to whether he had a right to decide as to who would be added on the list, or whether he could erase names from the list and not to give them assistance, the reply was "No". In principle, he said, it should have been checked with thepersonnel of the Departmentof Co-operative Development, 30 as to whether the person which would bs added on the list was an employee or holding a higher post. He further said that he had no files in the college regarding these matters, viz., as to whether someone was an employee or not. Inthecollege, headded,thework of preparing thelistsand/or 35 other material was of amechanicalnatureasregards the previous list and was preparing also thenew onewith the additionsand/ or erasures and were signed by the Departmentof Co-operative Development; and distributed the cheques only when they were approved and signed in the meantime. Speaking further on 40 44 15 20 25 2 C.L.R. Azinas and Another v. Police Hadjlanastassiou J. the same subject, he repeated again thatthecheque books from which the cheques were issued were distributed in accordance with instructions. The procedure which was followed for granting funds to other persons apart from the persons whose 5 names were on the list, was the following:- Someone was telephoning from the office of the first appellant, sometimes himself or his private secretary, and they were asking for the cheque books to be sent to them. There was a further procedure, he added, that any time he 10 visited the office of the first appellant he used to take those chequebooks andtheywere working togetherfor the completion of those cheques. Sometimes again telephone calls were received from his office and they were given instructions for the addition on the list of a particular name. 15 Turning to the question as to whether at any stage he had knowledge of thecirculars prepared by thefirstappellant, regar­ ding exhibits191-196, he emphatically said that he had never received either personally or in his capacity of being in charge of the college such circulars. He further stated that the first 20 timehesaw thosecirculars was when thetrial of thiscase started. Dealing also with the question of certain cheques which have been issued inhis name,heexplained that those cheques appea­ ringin supplement B,andparticularly exhibit 7,was for £33.040 mils and was issued in his name for the expenses he had made 25 for two meals inentertainingMr.Chronopoullos, the Chairman of the ΤΤ.Α.Σ.Ε.Γ.Ε.Σ.of Greece, who was invited and attended the conference of the refugees agriculturalists. Having given details regarding the money spent, and the reason why certain cheques were issued in his name personally, 30 he explained that in some cases some persons did not want to insert their names on the cheque for various reasons. He ad­ mittedthathe paid in cash to PEKof Paphos£700and toPEK. of Limassol another £
3. The reason for this, he explained was because it was the wish of the persons who received the 35 money not to be known publicly. Speaking about his journeys abroad and in attending various conferences, he explained that the decision to go abroad was taken by the Commissioner. He also added that he had supported before international forums our stand for the with45 Hadjianastassioa J. Azinas and Another v. Police

(1981)drawal of the foreign troops from Cyprus, and the right to every Cypriot to return to his home. There is no doubt, and it has not been challenged, that his journeys to the various meetings were approved by the Commissioner, and it was also part and parcel of their policy to co-operate with various agri- 5 cultural organizations including PEK, EKA and a number of other organizations. Having given reasons for each item he had spent, and we need not proceed to deal with each and every one, we would reiterate that the whole stand of appellant 2 during the trial was that 10 everything which he has done was done after he had the approval of the Commissioner and with regard to the payments made to P.E.K. and others, the reasons were to avoid publicity. However, as itappearsfrom hisown statement givento thepolice earlier, he contradicted himself because he admitted that he 15 was not receiving orders from appellant 1 but it was simply a matter of co-operation. (See exhibit 280 at p. 5; see also the statement of the first appellant given to the Police). Indeed, the questioning and cross-examination of the second appellant has covered a great number of pages, and we do not 20 propose adding anything else, except to repeat once again that from the whole questioning of counsel for appellant 2, it appears that his stand all along was that he had no personal gain from any of the funds which have been established and that he only did what he thought his duty to co-operate, and 25 his duty to help his country by attending conferences abroad in order to contribute as much as he could in enlightening public opinion abroad about the Cyprus problem. On the contrary, counsel for the prosecution, in challenging him that he was aware of what was going on with regard to the 30 various payments made, questioned him in these terms:"Q. But you were issuing announcements as you have told us,every Christmas and Easter and such announcements have been produced as exhibits 306-310 and you said who were the persons responsible and would 35 be coming to take their cheques. A. In my opinion the announcements say what they are and those which refer in the announcements and they were calling them to come and take their cheques from the Sulf-Assistance Co-operativists Fund. 46 40 2 C.L.R. •5 Azinas and Another v. Police Hadjianastassiou J. Q. But you have not replied clearly whether you knew the purposes of the Self-Assistance Co-operativists Fund. You told us of principles for a section of the Law, but you did not tell uswho were entitled and by whom this fund was created. A. If you mean the purposes which refer in the charge against me I did not know them".STATEMENT OF APPELLANT I TO THE POLICE: Before dealing with the substance of the statement of appellant 1to the police, it appears that on that date the police informed the first appellant that they were carrying out enquiries with regard to offences, which according to the material which they had in their hands, he (Azinas) had committed, in his capacity as the Commissioner of Co-operative Development, and as 15 Registrar of Co-operative societies. Then, having written down the various charges, A,B,C,D,E,F, the police proceeded to inform him that for the said charges he was proposing to interrogate him and obtain a statement from him. The police further warned him that he was not bound to say anything unless 2 . he wanted to do so, but whatever he would say may be taken down in writing and be adduced in evidence. 10 According to the statement, the first question was in these terms:- "There is an allegation that tetwzen the 13th January, 1979 until 29th February, 1980, you have illegally incurred a 25 loan from a current account under the name 'Commissioner of Co-operative Development—Self-Assistance Fund', and on the 29th February, 1980, the said loan reached the sum of £73.893. What do you have to say with regard to that allegation?" 30 Then, under the heading "Reply", the first appellant gave this statement:- "In December of 1974, we have returned from England together with the President of the Republic, Archbishop Makarios. More than 900 co-operative employees remained unemployed and without an income. With the 35 approval of His Beatitude, and before Christmas of 1974, I have urgently adopted a suggestion of the committee of displaced co-operative employees for collecting money which would be used for the payment of part of the salary to those employees who became refugees and were not emplaced in 47 Hadjianastassioa J. Azinas andAnother v.Police

(1981)their jobs. That unofficial collection of money had the stamp of being temporary, because then every one of us believed that the return of thedisplaced persons to theirhomeswas a question of weeks, and it developed into the creation of a Self-Assistance Fund, and today has developed into a Co-operative Society, Self-Assistance Ltd. Thisfund has started with a debit account at the Central Co-operative Bank for about £20,000 in order to pay the refugees during Christmas of

1. Those three forms of Funds, Self-Assistance, was handled by the committee of the displaced co-operative employees and the Pancyprian Co-operative Federation. 5 10 For the purpose of the success of the fund, I accepted to sign the cheques issued and these circulars for collection of money. In accordance with the law, the Co-operative Society SelfAssistance, was registered and has undertaken all the financial 15 obligations of the Self-Assistance Fund. The Self-Assistance Fund, until 1978, had a credit balance in the Central Co-operative Bank. As I am informed, after 1978 the Co-operative Central Bank allowed an overdraft. No-one had asked to approve the borrowing of money from that fund in accordance 20 with my powers. dt is well-known that the Commissioner of the Co-operative Bank has the power to approve a decision of any co-operative society to lend money to a legal body, co-operative or not, in accordance with the regulations of thesaid Co-operative Bank.I 25 want to make this clear: One co-operative society can approve a loan to a non-member as long as it secures by an obligation the permission of the Commissioner of Co-operative Development. The applicant may be an individual, or a co-operative society or any other type of a legal person. According to my 30 own interpretation, if the committee of the Central Bank was examining my application for borrowing such a loan, and I had approved of that decision of the committee of the bank, then legally a loan would be granted to me. I refer you to s.34 of Co-operative Societies Law, Cap. 114 and Law 28 35 of
2. For the handling of that fund, the accounts and its handling, Mr. Orphanos, the Secretary of the Co-operative Self-Assistance Fund will be in a position to inform you". It should be added that Mr. Orphanos was also present during the questioning of the first appellant. 48 40 2 CL.R. Azinas and Another v. Police HadjianastassEou J. On the 31st May, 1980, the second appellant gave a voluntary statement to the police and had this to say»· · 5 10 15 20 25 30 35 40 " I am the Director of the Co-operative college and Secre­ tary of the Pancyprian Co-operative Federation and at thesametimeIam secretary of thePancyprian Co-operative Company of Self-Assistance since the 1stNovember,
3. The Co-operative company of Self-Assistance constitutes the official expression of theunofficial Self-Assistance Fund of co-operative employees and of the Self-Assistance Fund, The Self-Assistance Fund of Co-operative emplo­ yees, was founded in December, 1974 after the return of the Commissioner of Co-operative Development, Mr. Azinas, from abroad with the late Archbishop Makarios. As soon as Mr. Azinas returned,he was confronted with a claim from the displaced co-operative employees for assistance to all that had not the opportunity of employ­ ment. As the Christmas holidays were approaching and the time was limited, it was decided to set up an account with the Co-operative Central Bank from which grants would be given to all co-operative employees who were in need of assistance and to which all the co-operative societies of Cyprus would contribute. At the beginning when it was opened, it was a debit account and an amount of about £20,000 was used. This account was named "Self-Assistance Fund of Co-operative Employees" c/o Commissioner of Co-operative Development, as a Co­ operative Society. In order to lend to a non-member, it needs the approval of the C.C.D. This account was managed by the staff of the co-operative college in cooperation with the committee of displaced co-operative employees and the Pancyprian Co-operative Federation, the cheques for the sake of convenience, were signed always by the C.C.D. until the establishment of the Co-operative Society of Self-Assistance. The amounts that were given from this fund were given in co-operation and with the knowledge of the C.C.D. The Self-Assistance of Co­ operative Employees was changed later on, I think in the year 1977, to Self-Assistance Fund with wider aims and in order to cover grants to other purposes of public benefit. This had the name Δ.Σ.Α., Self-Assistance Fund. The account of this fund was a credit one until the beginning 49 Hadjianastassiou J. Azinas and Another v. Police

(1981)of

1. The grants which were given for purposes of public benefit to hospitals, churches, organizations, clubs and others were almost always in cheques except isolated instances where there were technical difficulties and they were given in cash with the relevant evidential factors. 5 With regard to the accounts of this fund, the only books which were kept were files with the evidential material, as all the collections of contributions and remittances were made through the Co-operative Central Bank and appeared on the statements of account. All the grants 10 were given either to displaced co-operative employees or co-opeiativists whowereinneedofassistanceoi medical treatment and for public benefit purposes which were mentioned earlier and no amount was given to individuals but all the amounts which were given were intended for 15 some general purpose. On the 1st November, 1977, the Co-operative Society of Self-Assistance wasestablished,acommittee waselected consisting of Mr. Georghios Demetriou as Chaiiman, Theodosis Malekides, Kyiiakos Louca, Angelis Chara- 20 lambous and Andreas Charalambous as members, who appointed me as Secretary of the society. The Co-operative Society of Self-Assistance, by decision of its committee, took over the balance of the account of self-assistance with the Central Co-operative Bank. The 25 account today of the Society of Self-Assistance with the C.C.B.isacreditone,andreachesthelevelofabout£30,
2. From the date that the Co-operative Society of Self-Assistance took over the account of the fund of self-assistance, which was round £75,000 in the debit, the C.C.D. has no 30 interference except those which on the basis of the existing legislation, theC.C.D.haswithotherco-operative societies, and the account is administered by 1hccommittee and the secretary. The objects of the society continue to remain the same as before. All the cashed cheques of the fund 35 of self-assistance which were kept originally with the C.C.B.weretaken by theauditors ofthedepartment of Cooperative Development who audited the fund at the beginning of the year 1978 and the beginning of
3. These cheques, as well as other evidential matters were placed 40 50 2 C.L.R. 5 10 15 20 25 30 Azinas and Another τ. Police Hadjianastassiou J. from the beginning of March, 1980, by me at the disposal of the-President of the Republic who gave instructions to the Minister of Finance who checked them in my presence •and in the presence of the C.C.D. on the 29th March,
4. The cheques and the evidential material remained in the hands of the auditors and were delivered today to the police. The Δ.Σ.Α. Self-Assistance Fund, was administered by the same persons who administered the Fund of SelfAssistance of Co-Operative Employees. When I say that the staff of the co-operative college took part in the admi­ nistration of the self-assistance fund, I mean on principle, the clerks, typists in whose possession there were found the cheque books and who filled them in, and myself as the Director of the Co-operative College where many addressed themselves for assistance from the fund. Depen­ ding on the instance and the amount which was asked for, there was a proportionate co-operation with the Pancy­ prian Co-operative Federation, the committee of displaced co-operative employees, and the C.C.D. When theaccount of the self-assistance fund was in the debit, neither was asked for nor there existed any guarantee to the C.C.B. A guarantee was given when the Co-operative Society of Self-Assistance was founded". Finally, his statement was read to him, and having said that it was correct, he signed it. On 11th June, 1980, the second appellant was informed by the police that they were carrying out investigations with regard to some of the allegations made to them on various dates, and the questions and answers cover 20 handwritten pages. As we think that it is unnecessary to quote all these pages in the presentjudgment, we shall now proceed to deal with the grounds of appeal. GROUNDS OF APPEAL 1(a), (b) and (c): 35 Mr. Clerides in support of ground 1(a) argued that the conviction of. the first appellant was the result of a substantial miscarriage of Justice in as much as in deciding the submission of counsel for the appellant that the prosecution did not prove a prima facie case against the appellant, the trial Judge, by its ruling of the 24th January, 1981, decided certain matters 51 Hadjianastassioa J. Azinas and Another τ. Police

(1981)affecting the guilt or innocence of the appellant finally and before having heard the evidence of the appellant and his wit­ nesses contrary to the accepted principle of law that thefinal pronouncement of the guilt or innocence of an accused person should be pronounced only after hearing the whole of the case 5 including the appellant's version. After the closing of the case for the prosecution, counsel for the defence submitted under section 74(l)(

1. b)of the Criminal Procedure Law, Cap. 155,that no prima facie case had been proved against the accused suffi­ ciently to require them to make their defence, and invited the 10 trial Judge to acquit them at that stage. The ruling of the trial Judge with regard to this submission clearly shows how the whole matter had been approached. Indeed, he took into consideration the criteria on which hehad relied in order to decide whether a prima facie case has been 15 proved. With respect to counsel, the mere fact that the trial Judge decided in its ruling therelevantelements of the offences which the appellants were facing does not, in our view,mean that the Judge decided their guilt before hearing them, on the contiary, in our view, it has helped the defence by pointing 20 out in its ruling what the legal aspect of thecase was. Indeed, in going through this ruling, we have noticed that he never dealt with the evidence adduced, and indeed, he never decided the guilt of the appellants as the defence had argued on this ground. 25 The Practice Note issued in 1962 by the Divisional Court of the Queen's Bench Division of the High Court of England by way of direction ofjustices designed toguide themindetermining whether a prima facie case has been made out or not, reads as follows:- 30 "Those of us who sit in the Divisional Court have the distinct impression thatjustices today are being persuaded all too often to uphold a submission of no case. In the result, this Court has had on many occasions to send the case back to the justices for the hearing to be continued 35 with inevitable delay and increased expenditure. Without attempting to lay down any principle of law, we think that as a matter of practice justices should be guided by the following considerations. A submission thatthereis nocasetoanswer mayproperly 40 52 2 C.L.R. 5 10 15 Azinas and Another v. Police Hadjianastassioa J. bemadeand upheld: (a)when therehas beennoevidence to prove an essential element in the alleged offence; (
2. b)when the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it. Apart from these two situations a tribunal should not .in generalbocalled on to reach a decision as to conviction or acquittal until the whole of.the evidence which either sidewishestotenderhasbeenplacedbeforeit. If, however, a submission is made that there is no case to answer, the decision should depend not so much on whether the adjudicating tribunal (if compelled to do
3. so)would at that stage convict or acquit but on whether the evidence is suchthat areasonable tiibunal might convict. If a reasonabletiibunalmightconvictontheevidencesofar laid before it, there is a case to answer". This Practice Note, though not binding on Cyprus Courts, forms in practice an important guide, and has rightly been 20 followed byCourtshereexercising criminaljurisdiction, because of theidentity of our law on the subject, and as it incoipoiates the fundamental principles that a Court should have in mind in coming to a decision on the matter. In Wisemanand Another v. Borneman andOthers, [1969] 3 25 All E.R. 275, Lord Reid, in dismissing the appeal had this to say with regard to the term "prima facie" at p. 277:- 30 35 "It is, I think, not entirely irrelevant to have in mind that it is veiy ususual for there to be a judicial deteimination of the question whether there isa primafacie case. Every public officer who has to decide whether to prosecute or raise proceedings ought first to decide whether there is a primafacie casebut no one supposesthatjustice tequires that he should first seek the comments of the accused or the defendant on the material before him. So there is nothing inherentlyunjust in reaching such adecision in the absence of the other party". In Cyprus,referenceon this point may be·made to the case ofRex v.Mustafa Kara Mehmed, 16CL.R.46, which, however, turned on the interpretation of the statutory provisions in force 53 Hadjianastassiou J. Azinas and Another τ. Police

(1981)at the time, namely clauses 143 and 144 of the Cyprus Courts of Justice Order,

1. In respect of this case, the following observation, with which we agiee, is made in the textbook of Criminal Procedure in Cyprus by A. Loizou & G. Pikis, at p. I l l et seq. "The only decided case on the question of a prima facie case is that of R. v. Mustafa Kara Mehmed, 16 CL.R.
2. But the decision given in that case is of no great assistance as it was primarily based on the interpretation of the provi­ sions of clause 143 of the Courts of Justice Order, 1927, 10 the wording of which is, at least in one material respect, different from that of s.74(l)(b). In accordance with clause 143, the Court was required to examine, at the close of the case for the prosecution, whether the evidence adduced was sufficient 'to support the conviction' whereas in accor- 15 dance with the present Law, as earlier indicated, the Court is merely required to decide whether the accused should, in the light of the totality of the evidence, be required to make his defence. The present wordingof the statuteismoreinline with the 20 traditional concept of a prima facie case enunciated in a number of English cases, that is, the Court is required to dscide whether there is enough to call for an answer. (Wiseman and Another v. Borneman and Others [1967] 3 All E.R. 1045 (see in particular, the judgment of Lord 25 Denning M.R.). Findings of fact at this intermediate stage of the trial are provisional as the Couit must preserve an open mind to the very end of the proceedings (Cozens v. Brutus [1972] 2 All E.R. 1). A practical way to approach the question 30 of whether a prima facie case has been made out is that suggested by the Court in Vye v. Vye [1969] 2 All E.R. 29 (a decision in the field of Matrimonial Law); sec also Ellis v. Jones [1973] 2 All E.R. 893), where it was said:'We have heardenough of the case and we do notthink 35 anything of the case. This is a right proposition, provided it is coupled with the advice that it is usually better to wait and see both sides in matrimonial cases, before coming to a conclusion'. 54 5 2 C.L.R. 5 Azinas and Another v. Police Hadjlanastassiou J. The present position is more in fine, as opposed to the position adopted in the case of Kara Mehmed (supra) with Constitutional provisions laying down that nobody is guilty of an offence unless convicted by a Court of Law. (Article 12.4 of the Constitution.)" In a very recent case, ths Court of Appeal in England, in R. v.Galbraith, [1981]2AllE.R. 1061dealingwith the question of howto approach a submission ofno caseto answer, had this to say under the heading "Two schools of thought": 10 15 20 25 30 35 "The judge rejected a submission of no case at the close of the prosecution evidence and the principal ground of appeal was that he was wrong. Their Lordships had been told that some doubt existed as to the proper approach to be adopted by the judge at the close of the prosecution case on a submission of no case: Archbold Criminal Pleadings Evidenceand Practice, 40th Ed.,

(1979)5th Cumulative Supplement, para, 575, and R. v. Tobin [1980] Crim. L.R. 731. There were two schools of thought:

(1)that the judge should stop the case if in his view it would be unsafe, alternatively, unsafe or unsatisfactory, for the jury to convict;

(2)that he should do so only if there was no evidence on which a jury properly directed could properly convict. In many cases the question wasone of semantics and each test would produce the sameresult,but that was not necessarily so. A balance had to be struck between on the one hand a usurpation by the judge of the jury's function and on the other the danger of an unjust conviction. Before the Criminal Appeal Act, 1966, the second test was applied, but section 4

(1)(a) required the Court of Appeal to allow the appeal if they were of the opinion that the verdict should be set aside on the ground that 'under all the circumstances of the case it is unsafe or unsatisfactory'. Thereafter a practice grew up on inviting the judge at the close of the prosecution case to say that it would beunsafe, or, sometimes, unsafe or unsatisfactory, 55 Hadjianastassiou J. Azinas and Another τ. Police

(1981)to convict on the prosecutionevidence and on that ground to withdraw the case from the jury. It was doubtful whether the change in the Court of Appeal's powers could logically besaid tojustify achangein the basis of a nocasesubmission. Thefact that the Court 5 of Appeal had power to quash a convictiononthatground was a slender basis for giving the trial judge a similar power at the close of the prosecution case. However, there was a more solid reason for doubting the wisdom of the test. If a judge was obliged to consider whether 10 a conviction would be unsafe or unsatisfactory he could scarcely be blamed if he applied his view as to the weight to be given to theprosecutionevidence andas to thetruth­ fulness of the prosecution witnesses and so on. Thatwas what LordWidgery said was clearly notpermis- 15 sible in R. v. Barker (Note [1975] 65 Cr. App. R. 287): 'It is not thejudge's job to weigh theevidence,decidewho is telling the truth and stop the case merely because he thinks the witness is lying. To do that is to usuip the functions of the jury' 20 How thenshould thejudge approacha submission of no case?

(1)If there was no evidence that the crime alleged had been committed by the defendant there was no diffi­ culty—the judge would of course stop the case.

(2)The difficulty arose where there was some evidence but it was 25 of a tenuous character, for example, because of inherent weakness or vagueness or because it was inconsistent with other evidence; (

1. a)where the judge concluded that the prosecution evidence, taken at its highest was such that a jury properly directed could not properly convict on 30 it, it was his duty on a submission being made to stop the case; (
2. b)where, however, the piosecution evidence was such that its strength or weakness depended on the view to botaken of a witness's reliability or othermatterswhich were generally speaking within the jury's province and 35 where on one possible view of the facts there was evidence on which thejury could properly concluds that the defen­ dant was guilty, then the judge should allow the matter to be tried by the jury. It followed that the second school of thought was to be 40 56 2 C.L.R. Azinas and Another τ. Police Hadjianastassiou J· preferred. There would bo borderfinecases. They could safely be left to the judge's discretion. 5 In the present case the circumstances were such that it was a case where thejury should decide the weight of the evidence on which the prosecution based its case. There was no substance in any other ground of appeal. The application was refused". There is no doubt that the trial Judge in our case fiom the material before him, rightly reached the conclusion that the 10 prosecution had made out a prima facie case, and correctly, in our view, rejected the submission of counsel for both appel­ lants. In the fight of those weighty pronouncements,we find that he followed the proper approach by adopting the criteria laid down in the aforesaid cases. Therefore, the submission 15 of counsel on ground 1(
3. a)should fail. We turn now to ground of appeal 1(b). Counsel for the firstappellant argued that the trialJudge erroneously accepted andreceived inevidencethestatementmadeby himtothepolice on the 1st May, 1980, which statement materially affected the 20 hnal verdict. The objection to its admissibility was that it was rule III of the Judges' Rules which was applicable and not rule II. Theargument of the defence was based on a statementmade by the investigating officer which preceded the caution, and 25 which statement reads as follows:- 30 "I inform you that I am carrying out investigations with regard to offences, which in accordance with the material I have in my hands,you have committed in your capacity as Commissioner of Co-operative Development and Registrar of Co-operative Societies." The appellant then was questioned, and the statement is in the form of questions and answers. The difference that results from the applicability of rule III to rule IIis that if rule III was applicable only in exceptional cases relating to the offence 35 questions should have been put to the accused person after he had been charged or informed that he may be prosecuted, although he might be questioned about other offences and such other questions as are necessary for the purpose of preventing 57 Hadjianastassioa J. Azinas and Another v. Police

(1981)or minimizing harm or loss to some other person or to the public or for clearing up an ambiguity in a previous answer or statement. The accused should then bo cautioned in the prescribed terms. Thetrial Judge, inhis Ruling at the closeof a side trial, ruled 5 thatoncethe material whichthepolicehad intheir handsat the time did not justify the bringing of charges against the first appellant,examiningiteitherwithobjective orsubjective criteria, the statement was admissible as rule II, wasthe one applicable in the case irrespective of the unfortunate phraseology used 10 by the investigating officer. In fact, the defence conceded that the material which the police had in their hands did not justify the preferment of charges at the time against thefirstappellant byanyobjective criteria, though theymaintain intheir argument that because of the phraseology used, no questions could be 15 put to the appellant in the way that they were put to him and the statement was obtained thereunder. Having heard the submissions of both counsel, and particularly counsel for the prosecution, we agree that the phraseology used by the police does not form part of the caution as it 20 is stated in the Judges* Rules, rule II, but it is an introduction to the subject only, and therefore, there isno particular phraseology which is binding. Furthermore, the phraseology used by the police, in our view, does not mean that the investigating officer had informed the accused that he had in his hands evi- 25 dence which justified criminal proceedings. What constitutes evidence within this rule II it was decided in thecaseof R. v. Osborne [1973]2W.L.R. 209whichprovides thi answer. In thiscasethe defendants werearrested on suspicion of having taken part in a robbery and were taken to a 30 police station. A police officer, who had reasonable grounds for suspecting the defendants but was of the opinion that he had noevidence tojustify hissuspicioninterrogated themabout their movements at ths time of the lobbery without cautioning themunderrule IIofthc Judges'Rules 1964. On appealagainst 35 convictionon the grounds that the evidenceof the interrogation was inadmissible because, in the absence of a caution rule II of the Judges' Rules 1964had not been complied with and that the evidence of the police inspector at the parade had been wrongly admitted: Held, dismissing the appeal,

(1)that "evi- 40 58 2C.L.R. AzinasandAnother v.Police Hadjianastassiou J- dence" in rule II of the Judges* Rules 1964 meant information whichcould be put before a Court; accordingly, an interrogation police officer was not bound to administer a caution until he had some information which he could put before a Court at 5 the beginning of a case, and that, since the interrogating officer had obtained no such information either before or during the interrogation cf the defendants, his evidence was correctly put before the jury. Lawton L:J., in delivering the judgment of the Court, had 10 this to say at p. 216: 15 20 25 30 35 40 "Now I turn to the basis of the submission with regard to the rejection of the evidence of the inteirogation. It is said on behalf of both defendants that by the time Chief Inspector Gittus came to cany out the interrogation he had evidence whichwould have afforded reasonable grounds for hissuspectingthat they had committed anoffence. The first problem which arises in this case is what is meant by 'evidence' in this context. It is important for the Court to remind that the Judges* Rule^are intended for the guidance of policeofficers. They have to comply with the rules. If a police officer looks at the rules and asks himself the question 'What do they mean?' he would answer in the fight of his own police experience. In police experience, evidence means information which can be put before a Court: and it means that not only to police officers but to the general public, as is shown clearly by one of the meanings given to the word 'evidence' in the Shorter Oxfoid English Dictionary, 3rd ed.,

(1944)p.643which under the subheading 'Law', defines 'evidence' in these terms: 'Information that is given in a legal investigation, to establish the fact or point in question'. If a police officer, who was trying to understand what the word 'evidence'meantintheJudges*Rules,felt that he ought to turn to a standard legal textbook in the case the Oxford Dictionary definition was too wide, and he turned to Phipson on Evidence, 11th ed.

(1970), p. 2, para. 3, he would have found 'evidence* defined as follows: 'Evidence, as used in judicial proceedings, has several meanings. The two main senses of the word are: first, the means, apart from argument and inference, 59 Hadjianastassioa J. Azinas and Another v. Police

(1981)whereby the Court is informed as to the issues of fact as ascertained by the pleadings;secondly, the subjectmatter of such means'. In thejudgment of thisCourt, that ishow apolice officer would understand these rules". Then Lawton L.J. goes on: "There are other indications in the rules that that is the rightwayfor them to beconstrued. Therules contemplate three stages in the investigations leading up to somebody being brought before a Court for a criminal offence. The 10 first isthegatheringofinformation, andthatcanbegathered from any body, including persons in custody provided they have not been charged. At the gathering of information stage no caution of any kind need be administered. The final stage, the one contemplated by rule III of the 15 Judges' Rules, is when the police officer has got enough (and Istressthe word 'enough') evidencetoprefer acharge. That is clear from the introduction to the Judges* Rules which sets out the principle. But a police officer when carrying out an investigation meets a stage in between 20 themeregatheringofinformation and thegettingofenough evidence to prefer the charge. He reaches a stage where he has got the beginnings of evidence. It is at that stage that he must caution. In the judgment of this court, he is not bound to caution until he has got some information 25 which he can put before the Court as the beginnings of a case". But in any event, with that weighty judicial pronouncement in mind,and assumingthat inthe present casethere wasaviolation of the Judges' Rules, such violation does not automatically 30 make a statement not admissible but it grants to the Court thediscretionarypowertodecidewhethertoacceptortodismiss the said statement. Indeed, the trial Judge exercising his discretionary power accepted the statement made by the first appellant. As to what is, then, the basic criterion which a 35 Court takes into consideration whether a statement is free and voluntary reference may be made to the case of Costas Andreou Kokkinos v. The Police

(1967)2 CL.R.

1. In delivering a separate judgment, and having agreed with the reasoning and 60 5 2 CL.R. Azinas and Another v. Police HadjIanastassJou J. conclusions reached by the then learned President of this Court H.H. Vassiliades P., had this to say at p. 227: 5 10 15 20 "The principle with regard to the admissibility of confessions is too well knownand hasbeenexpounded in many English and Cyprus cases; and, in order to be admissible, a confession must be free and voluntary, and unless it be shown affirmatively, on the part of the prosecution, that it was made without the prisoner's being induced to make it by any promise of favour, or by menaces, or undue terror, it shall not bereceivedin evidence against him, vide R. v. Thompson [1893] 2 Q.B. 12; Ibrahim v. The King [1914] A.C. 599 at p.
2. This principle was adopted and followed in thevery wellknown caseof R. v. Georghios Sfongaras,

(1957)22 CL.R. at p. 113, decided inthedark daysoftheEOKAfighting. Seealsotherecent case of the Commissioners of Customs and Excise v.Harz and Another, (House of Lords) [1967] 1 All E.R. 177, where the principle relating to confessions was extended to the effect that a confession or statement by an accused is not admissible in evidence at his trial, if it was induced byathreatorpromise,appliesequallywheretheinducement does not relate to the charge or contemplated charge as where the inducement does so relate". Seealso the caseof MichaelAntoniou Petriv. ThePolice

(1968)25 2 C.L.R. 40and loannides v. The Republic

(1968)2CL.R.

1. On the question whether or not the statement was voluntary see R. v. Voisin [1918] 1 K.B.531 and R. v. Prager[1972]1 W.L.R.
2. There is no doubt from the authorities that trial Courts in 30 exercising their discretionary power have to take into consideration the consequences of the breach, the extent and the length and whether the violation turns on typical subjects. In Michael Antoniou Petriv. The Policesupra, Vassiliades P., in dealing with the exercise of discretionary power with regard 35 to the statements obtained by police has quoted a passage from Lord Devlin from his text book "The Criminal Prosecution in England"

(1960)at pp. 38-39, which reads: 4Q "The essence of the thing is that a Judge must be satisfied that some fair oi unfair oppressive use has been made of policepower. Ifheissosatisfied, hewillrejecttheevidence 61 Hadjianastassioa J. Azinas and Another τ. Police

(1981)notwithstanding that there is no rule which specifically prohibits it: if he is not so satisfied he will admit the evidence even though there may have been some technical breach of one of the Rules. It must never be forgotten that the Judges* Rules were made for the guidance of the 5 policeandnotfor thecircumscriptionof thejudicial power". It is impoitant to state further that with regard to the basic criteria which are taken into consideration by a trial judge for admitting or notthe statement of an accused person, is whether it was given voluntarily; compliance however with the Judges' 10 Rules would help considerably a Court to decide as to whether the statementtaken was givenvoluntarily or not. The question whether a person has been duly cautionedbefore making astate­ ment is a circumstance to bo taken into account by thejudge in exercising his discretion whether to exclude the statement, 15 but the absence of a caution does not as a matter of law make the statement inadmissible. In the case of R. v. Voisin (supra) Lawrence J. indelivering theunanimousjudgment of theCourt, had this t